Even without section 66A, India lags behind many nations in internet regulations for freer speech , Economic times

You’re in a rush, you double park your car near a store, duck in to run some errands and return to find a parking ticket for your trouble. When you go online to rage against the local traffic cops, you aren’t cheered by a horde of others who’ve faced a similar fate. Instead, this 21-year-old resident of Yandian town of Yanzhou district in China found out how tough the laws governing the internet can be in his country.

The Yanzhou Public Security Bureau Internet Squad, a state monitoring agency, decided he had defamed the local police — he called them cowards in a post — and sent him to prison for a week. The youth, according to a citation, had “publicly insulted the people’s police, causing a negative social influence”.

If that’s life under a strict internet-monitoring regime, then life under the recently repealed Section 66A of the IT Act too gave Indians plenty of cause to worry. Students, cartoonists, professionals and even pensioners were all hauled up using this draconian legislation. With its scrapping by the Supreme Court (SC), India may have taken a positive direction towards a freer internet.

Net Result

While people can’t be summarily hauled off to jail for venting their spleen, lawyers and rights activists say India has a long way to go before its internet regulations match up to the best in the world. “The SC has set the ball rolling towards free speech on the internet with this verdict, but India needs to move towards legislation among the Scandinavian countries, which set the gold standard,” says Sunil Abraham, executive director of Centre for Internet and Society, a regulation and policy think tank in Bengaluru.

Activists say rankings such as The Freedom On The Net report by Freedom House, an independent watchdog for freedom based in Washington DC, provides some clues to which direction India must head. On their latest listing, issued in December 2014, India’s Freedom on the Net score is 42 (with 0 being most free and 100 completely repressed), a reasonable rank compared to controlling states such as China (87), Iran (89) and Syria (88). In contrast, the least regulated markets like Iceland (6), Estonia (8) and Germany (17), lead the way in internet freedom.

Lawyers and activists believe that the repeal of some of these hastily enacted provisions is a first step to freer regulation of the internet — and indeed freedom of expression overall. Activists say India has taken a small yet firm step in the right direction, but even then, its internet laws have some catching up to do. “[India is doing] a whole lot better since the Supreme Court’s judgement,” says Anja Kovacs, who directs the Internet Democracy Project, a research and advocacy outfit in Delhi. “But overall, India hasn’t been doing very well… Surveillance, for example, is allowed too liberally.”

The Corporate Angle

Other concerns too fester. Section 69A is framed far more narrowly than 66A was (it doesn’t allow for censorship on the grounds of morality, for example) and therefore, this clause should stay. “The rules under the provision need considerable improvement,” says Kovacs. “In particular, takedowns under 69A, as is now required for takedowns under 79, should be subject to scrutiny of the judiciary.” Another bone of contention, is the rules which dictate that all decisions made under it should be kept secret. “This is unacceptable. Can you imagine a book being banned, and the government not announcing it?”

Activists say the battle is half won. “The court left intact Section 69A, the government website blocking procedure, despite the lack of either judicial review or transparency in how or which sites are blocked,” says James S Tyre, special counsel for Electronic Frontier Foundation, a San Francisco-based advocacy group. “This is the first time the SC has struck down or limited internet censorship laws. However, the SC has much more to do.”

Executives across the world’s largest internet companies will know the headache involved in keeping pace with a deluge of directives from the state to block content. For example, social networking site Facebook blocked nearly 6,000 pages in India — the highest globally — as an easily offended population used this piece of legislation to strike back at dissenters.

Now, Facebook executives think the time may have come for India to build more liberal laws. “In striking down 66A as unconstitutional, the SC has defined net freedom in the country,” says Ankhi Das, director of public policy, India, south and central Asia, Facebook. It provides a sense of direction for future regulation of online content in India, she adds. “The court has laid out… how ‘offences’ can be dealt with under current provisions of substantive law in our criminal code and defamation laws. Re-engaging on a legislative exercise to replace 66A which the court struck down is unnecessary.”

Liberal internet law is key for Facebook and its rivals like Twitter and Google to thrive. With internet gear maker Cisco predicting that India would have over half a billion net users in three years and the number of mobile phone subscribers (for many the first way to access the web) expected to cross a billion soon, the likes of Facebook’s Das will be hoping these laws only get more liberal.

Rights and Duties

Away from the business that these multi-billion dollar corporations seek, activists argue that norms need to keep improving to safeguard the fundamental right to freedom of expression. “This is a first step in this direction,” says Parth Shah, president of Centre for Civil Society, a think tank. “The culture of taking offence to everything has become institutionalised and the voice of dissent was stymied because 20 people didn’t like what they said.” He contends that rather than tinker endlessly with sections like 66A, the judiciary can work on a case-by-case basis using existing laws to regulate the internet.

According to Apar Gupta, a lawyer and partner in the Delhi office of Advani and Co, the SC judgement has laid a strong foundation by putting the Constitution and freedom of expression at the heart of the debate. “The court will not hesitate to strike down laws which conflict with the right to freedom of expression,” he says. “A groundswell of popular opposition helped highlight the use and misuse of 66A and this may be the case in future too when broader legislations around hate speech (under section 153 of the IPC) and criminal defamation (499 of IPC) come under the scanner.”

Legislations, he adds, also need to keep pace with shifting social mores. If the printing press and books and pamphlets it churned out were once considered a source of trouble, the internet has now taken over that role. “Speech by itself doesn’t have the power to spark a riot or cause physical damage,” he contends.

According to Vipul Mudgal, co-director, Common Cause, a Delhi-based free speech watchdog that was a key driver in the Section 66A case, this judgement was a small, firm step in the right direction, but much more needs to be done. “We also wanted [Sections] 69A, 80 and 67B to be struck down, because they were in conflict with Sections 14, 19, 21 of the Constitution, which dealt with equality, freedom of expression and life and liberty,” he says. He says Section 67B criminalises even accidental access to prohibited content — think of stumbling upon a terror outfit’s web page or site. “This approach to regulating the internet must change.”

Legal experts agree that regulating the borderless internet poses a difficult challenge to the lawmakers. With the SC clearly stating that freedom of expression (within prescribed limits) would be given preference in case of a conflict, any new laws would need to work with this in mind. “If any new section is introduced… it ought to bear in mind that it must clearly limit scope of its application to such acts that can be legally criminalised as per reasonable and objective parameters,” says Karnika Seth, a cyber law expert and partner at Seth Associates, Delhi.

As India works towards reshaping its internet laws, she has a sharp reminder that despite the advent of the internet, some old rules of the game will always apply. “Simply because 66A is struck down does not mean any one can say anything on the web,” she adds. “The use of abusive terms and criminally intimating statements is still illegal.” In other words, one will still need to observe the law and act with netiquette on the web.